R v Cranston (No 15)

[2022] NSWSC 977

Supreme Court

New South Wales

• Amendment notes

Medium Neutral Citation:

R v Cranston (No 15) [2022] NSWSC 977

Hearing dates:

20 July 2022

Date of orders:

20 July 2022

Decision date:

21 July 2022

Jurisdiction:

Common Law

Before:

Payne JA

Decision:

(1) The individual Juror 02960699 is discharged pursuant to s 53B(d) of the Jury Act 1977 (NSW);

(2) Pursuant to s 53C(1)(b) of the Jury Act, the trial is to continue with the remaining thirteen jurors.

Catchwords:

CRIMINAL PROCEDURE — Trial — Jury — Discharge of individual juror — where juror falling asleep during evidence — juror discharged
CRIMINAL PROCEDURE — Trial — Jury — order that the trial continue with remaining jurors

Legislation Cited:

Jury Act 1977 (NSW), ss 53A, 53B, 53C

Category:

Procedural rulings

Parties:

Regina (Crown)
Adam Michael Cranston (Accused)
Lauren Anne Cranston (Accused)
Jason Cornell Onley (Accused)
Dev Menon (Accused)
Patrick Willmott (Accused)

Representation:

Counsel:
P McGuire SC with J Paingakulam and C Tran (Crown)
J Stratton SC with H Blake (Adam Cranston)
TD Anderson SC (Lauren Cranston)
P Bruckner (Dev Menon)
WR Johnson (Jason Onley)
L Brasch (Patrick Willmott)

Solicitors:
Commonwealth Director of Public Prosecutions (Crown)
One Group Legal (Adam Cranston)
Greg Willis Criminal Defence Lawyer (Lauren Cranston)
Hardinlaw (Dev Menon)
Pure Legal (Jason Onley)
The Defenders (Patrick Willmott)

File Number(s):

2017/148697; 2017/148185; 2017/148776; 2017/149208; 2020/115291

Publication restriction:

Not to be published other than to the parties until after the trials of each of the accused are completed.

Judgment

1. This trial commenced on 26 April 2022 and fifteen jurors were empanelled. On 28 June 2022, I made orders discharging an individual member of the jury and determined that the trial should continue with the remaining fourteen jurors: R v Cranston (No 14) [2022] NSWSC 860.

2. The trial subsequently proceeded until yesterday, 20 July 2022, the 48^th day of the trial. On the morning of 20 July 2022, I received a note from Juror 02960699 in the following terms:

“To His Honour

I, [Juror 02960699], have decided to withdrawn (sic) from this jury and from the case. My insomnia has been taking a big toll on my physical and mental health, as I'm sure you and everyone else has noticed. My lack of attention when the trial is in session has, in my opinion, impaired my judgment as a juror as I keep missing details as they are presented. My presence has always been a distraction for the other jurors as they have to try to keep me awake. I have decided to seek the medical help I need, and it is for that reason that, with heavy heart, I would like to withdraw from this jury. I wish you and everyone else in this court the best. Best of luck with the trial.”

3. In addition to my opening remarks, I had previously addressed the jury about the importance of informing me if they were having difficulty concentrating or staying awake during the evidence: T555.25-32. This was because of my observations of this juror at about that time. On 6 May 2022, the ninth day of trial, I received the following note from Juror 02960699:

“Many apologies for having trouble keeping awake. I have chronic insomnia which leads to chronic headaches in the morning, meaning I have some trouble staying awake if I don't get enough sleep the night before. I have a bit of a light sensitivity so I will close my eyes periodically to rest them. Apologies again, I will try my best to stay awake from now on.”

4. Senior Counsel for the Crown had noted in the days preceding 20 July, correctly as it turned out, that he had observed this juror sleeping during the evidence. The Crown also recorded observations that other members of the jury were apparently aware of the juror’s inability to stay awake during the proceedings.

Consideration

5. Although the power to discharge an individual juror provided by s 53A or s 53B(a) of the Jury Act1977 (NSW) may have been enlivened here, the parties submitted, and I agreed, that it was unnecessary to consider those provisions as the jurisdiction in s 53B(d) of the Jury Act was plainly enlivened. That section provides in full:

53B   Discretionary discharge of individual juror

The court or coroner may, in the course of any trial or coronial inquest, discharge a juror if—

(a)   the juror (though able to discharge the duties of a juror) has, in the judge’s or coroner’s opinion, become so ill, infirm or incapacitated as to be likely to become unable to serve as a juror before the jury delivers their verdict or has become so ill as to be a health risk to other jurors or persons present at the trial or coronial inquest, or

(b)   it appears to the court or coroner (from the juror’s own statements or from evidence before the court or coroner) that the juror may not be able to give impartial consideration to the case because of the juror’s familiarity with the witnesses, parties or legal representatives in the trial or coronial inquest, any reasonable apprehension of bias or conflict of interest on the part of the juror or any similar reason, or

(c)   a juror refuses to take part in the jury’s deliberations, or

(d)   it appears to the court or coroner that, for any other reason affecting the juror’s ability to perform the functions of a juror, the juror should not continue to act as a juror.

6. The Crown and counsel for each of the accused jointly submitted that in the present circumstances I should exercise the discretionary power in s 53B(d) to discharge the individual juror. In the light of the circumstances described in the juror’s note, I formed the view that the juror’s ability to perform the functions of a juror was seriously compromised and that the juror should not continue to act as a juror. Accordingly, I made an order under s 53B(d) discharging individual Juror 02960699.

7. As to the separate discretion in s 53C of the Jury Act, it was the unanimous submission of the parties that the trial should continue. There remains thirteen apparently healthy and attentive members of the jury. After three months, the evidence is now substantially advanced and the jury have already heard a good deal of the total evidence in the case. Accordingly, pursuant to s 53C(1)(b) of the Jury Act, I determined that the trial should continue with the remaining thirteen jurors.

Orders made

8. For the above reasons, on 20 July 2022 I made the following orders:

1. The individual Juror 02960699 is discharged pursuant to s 53B(d) of the Jury Act 1977 (NSW).

2. Pursuant to s 53C(1)(b) of the Jury Act, the trial is to continue with the remaining thirteen jurors.

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Amendments

21 March 2023 - Publication restriction lifted.

Decision last updated: 21 March 2023